2020 WL 6504639

United States District Court, M.D. Pennsylvania.
MICHAEL KARP and LINDA KARP, Plaintiffs,
v.
DANA JENKINS and CIS EXPRESS, LLC, Defendants.
No. 4:18-CV-02282
|
11/04/2020

Matthew W. Brann, United States District Judge

MEMORANDUM OPINION NOVEMBER 4, 2020 I. BACKGROUND
*1 This case was initially filed by Plaintiffs Michael and Linda Karp (“Plaintiffs”) against Defendants Dana Jenkins and CIS Express, LLC, (“CIS” and, together with Jenkins, “Defendants”) on November 18, 2018.1 This action is brought under the Court’s diversity jurisdiction, raising questions of Pennsylvania state law. Since being served in 2019, Defendants have failed to appear before this Court at all. Plaintiffs moved for entry of default against Defendants in July and August 2020,2 and default was subsequently entered by the Clerk of Court.3Currently before this Court is Plaintiffs’ motion for default judgment, filed in August 2020.4 Defendants have not responded, and the motion is now ripe for disposition. For the reasons that follow, the motion is granted.

II. DISCUSSION

A. Default Judgment is Warranted
Federal Rule of Civil Procedure 55 allows the District Court to enter default judgment upon application by a party.5 “Generally, the entry of a default judgment is disfavored, and a court is required to exercise sound judicial discretion in deciding whether to enter default judgment.”6 “This element of discretion makes it clear that the party making the request is not entitled to a default judgment as of right, even when defendant is technically in default and that fact has been noted under Rule 55(a).”7 It is “well settled that decisions relating to default judgments are committed to the sound discretion of the district court.”8

“Three factors control whether a default judgment should be granted: (1) prejudice to the plaintiff if default is denied, (2) whether the defendant appears to have a litigable defense, and (3) whether defendant’s delay is due to culpable conduct.”9 “But when a defendant has failed to appear or respond in any fashion to the complaint, this analysis is necessarily one-sided; entry of default judgment is typically appropriate in such circumstances at least until the defendant comes forward with a motion to set aside the default judgment under Rule 55(c).”10 In cases where the Defendants fail to appear, this Court may enter default judgment “based solely on the fact that the default has occurred.”11

The Court nevertheless considers the factors at issue for the sake of completeness; in this case, those factors clearly favor the grant of default judgment. First, Plaintiffs would be prejudiced by their “current inability to proceed with their action due to Defendants’ failure to defend.”12 Defendants’ decision to not appear before this Court would otherwise prevent Plaintiffs from recovering any damages for their claims. Similarly, the second factor points in favor of the grant of default judgment. “Defendant[s] ha[ve] not responded to the allegations and, thereby, ha[ve] failed to assert a defense.”13 Finally, there does not appear to be any excuse for Defendants’ failure to appear or otherwise respond to Plaintiffs’ complaint. Plaintiffs submitted two executed summonses, which were served on: (1) Dana Jenkins personally; and (2) Carmen Moran, a person designated by law to accept service of process on behalf of CIS.14 Having received service, Defendants have yet to respond or appear in this action. Because Defendants have offered no explanation for their failure to respond, the Court finds that Defendants are culpable.15 Therefore, the Court finds that default judgment is appropriate given the circumstances.

*2 A finding that default judgment is warranted, however, “is not the end of the inquiry.”16 First, the Court must consider whether the “unchallenged facts constitute a legitimate cause of action.”17 Although the defaulting parties do not concede conclusions of law, “the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.”18 Plaintiffs’ 14-count complaint asserts various violations of Pennsylvania state law. The Court now considers whether the allegations in the complaint, taken as true, state a claim.

B. The Facts Alleged in the Complaint
The facts alleged in the complaint, which I accept as true for the purposes of determining whether Plaintiff has stated a claim, are as follows.

On or about May 2, 2017, Plaintiffs were traveling westbound in the right lane of Interstate 80, through Centre County, Pennsylvania.19 At the same time, Jenkins was operating a tractor trailer owned by CIS, also traveling westbound on Interstate 80, in the left lane.20 Jenkins proceeded to drive incredibly close to Plaintiffs’ vehicle, beeping his horn.21 Michael Karp, driving Plaintiffs’ vehicle, moved further right to allow Jenkins to pass.22 When Jenkins was about halfway past Plaintiffs’ vehicle in the left lane, he suddenly and without warning moved from the left lane into the right lane, striking Plaintiffs’ vehicle with the semi-trailer of his own.23

Thereafter, Jenkins was charged with multiple violations, and pled guilty to two counts of simple assault and two counts of recklessly endangering another person.24 As a result of the collision, Plaintiffs have suffered a variety of injuries and have incurred significant costs.25

C. Plaintiffs’ Claims

1. Plaintiffs Have Stated a Claim for Negligence Against Jenkins, but Not Against CIS.
The four elements of a negligence claim under Pennsylvania law are as follows: “a duty to conform to a certain standard for the protection of others against unreasonable risks; the defendant’s failure to conform to that standard; a causal connection between the conduct and the resulting injury; and actual loss or damage to the plaintiff.”26 The United States Court of Appeals for the Third Circuit has “held that the duty of care owed in a negligence action arising from a car accident in Pennsylvania ‘is at least that established by the Pennsylvania Vehicle Code.’ ”27

The Court finds that Plaintiffs have adequately pleaded the elements of a negligence claim against Jenkins. First, the complaint explains that Jenkins violated his duty through his “[f]ailure to exercise a degree of care which an ordinary and prudent person would have done under the circumstances.”28 It is “axiomatic that drivers owe each other a duty of care.”29 Plaintiffs also rely on negligence per se to establish a duty. For example, Plaintiffs further allege that, beyond this common law duty, Jenkins failed to drive his vehicle within a single lane, in violation of 75 Pa. C.S.A. § 3309.30 Courts have held that a violation of Section 3309 can constitute negligence per se.31 Therefore, Plaintiffs have sufficiently established a duty of care owed by Jenkins.

*3 Plaintiffs have also pled the other elements of a negligence claim. They allege a variety of ways that Jenkins breached his duties of care – in short, by “mov[ing] from the left lane of travel into the right lane of travel and suddenly, violently and without warning str[iking] the Plaintiffs’ vehicle with the semi-trailer of his vehicle.”32 Finally, Plaintiffs have alleged causation and damages, as discussed above.33

Plaintiffs also seek to impute liability onto CIS, Jenkins’s employer. Plaintiffs have not, however, sufficiently alleged facts showing that Jenkins was acting within the scope of his employment with CIS at the time of the accident. The conclusory allegation to that effect is insufficient.34 Plaintiffs also claim direct liability against CIS. Plaintiffs allege that CIS acted negligently in its own right and alleges a series of failures by Jenkins’s employer. Here, while Plaintiffs have likely established the elements of duty and breach, the allegations relating to causation are scant and insufficient to support liability against CIS, independent from any relationship with Jenkins.

2. Plaintiffs Have Stated a Claim for Negligent Infliction of Emotional Distress.
Plaintiffs also assert two claims for negligent infliction of emotional distress against Jenkins. Under Pennsylvania law, there are four theories under which an action for negligent infliction of emotional distress will lie: (1) impact liability where emotional distress is accompanied by physical injury or impact; (2) zone of danger liability where emotional distress is inflicted on a plaintiff who was in close proximity of physical impact and thereby reasonably experienced a fear of physical injury; (3) bystander liability for emotional distress experienced by a plaintiff who personally witnessed an impact upon a close relative; and (4) special relationship liability premised on the breach of a preexisting contractual or fiduciary relationship that foreseeably resulted in emotional harm so extreme that a reasonable person should not be expected to endure the resulting distress.35

Plaintiffs allege that because of the harm suffered by one another, they each have been caused “severe fear, anxiety, and emotional distress that has manifested itself psychologically, emotionally, and physically.”36 It is somewhat unclear which of the four theories Plaintiffs base their claims under, but they appear to stem from the third. Where a plaintiff alleges negligent infliction of emotional distress as a result of observing a close relative’s injury, the following factors are to be considered:

(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.37Plaintiffs were at the scene of the accident, observed each other’s injuries and are married. As such, they have each stated a claim for negligent infliction of emotional distress against Jenkins. Because Plaintiffs have not alleged a claim of negligence against CIS, however, their claim as to that Defendant fails immediately. “In all cases [alleging negligent infliction of emotional distress], Plaintiff must establish a prima facie case of negligence.”38

3. Plaintiffs Have Stated a Claim for Loss of Consortium Against Jenkins, but Not Against CIS.
*4 “Loss of consortium is an injury referring to the impact of one spouse’s physical injuries upon the other spouse’s marital privileges and amenities, and, while remaining a distinct cause of action for loss of services, society, and conjugal affection of one’s spouse, is a claim “derivative” of a spouse’s separate claim of injury.”39 Because Plaintiffs have sufficiently stated a claim against Jenkins based on Mr. Karp’s injuries, “they have also adequately pleaded the derivative claim of loss of consortium”40 against Jenkins. Because the same negligence claim failed against CIS, so must the loss of consortium claim against that entity.

D. Damages
Having found that Plaintiffs have stated a legitimate cause of action as to certain claims, the Court considers the amount of damages Plaintiffs are entitled to. In this case, the Court cannot accurately assess damages based on solely the complaint – something Plaintiffs acknowledge in their motion for default judgment by seeking trial on the issue of damages. The Court will schedule further proceedings on this issue. Plaintiffs also seek punitive damages. Generally, discovery is necessary to determine whether punitive damages are appropriate. As there will currently be no discovery in this matter, the Court will consider the evidence put forth by Plaintiffs in future proceedings to determine whether they are entitled to punitive damages.

III. CONCLUSION
Default judgment is appropriate in this case, particularly given Defendants’ failure to even enter an appearance in the action.

Plaintiffs have sufficiently stated a claim for relief under Counts 1, 3, 6, 8, 10, and 13 of the complaint.

Plaintiffs have not stated a claim under Counts 4, 5, 7, 11, 12, and 14.

Counts 2 and 9 seek punitive damages against Jenkins and will be addressed in a future proceeding.

As neither Defendant has yet filed a responsive pleading, Plaintiffs have the opportunity to file an amended pleading as of right,41 or they can proceed to the issue of damages on the surviving counts. Should Plaintiffs wish to file an amended complaint, they are instructed to do so by November 25, 2020. In the interim, the Court will schedule a telephonic conference with Plaintiffs to inquire as to their intentions.

An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann

Matthew W. Brann

United States District Judge
All Citations
Slip Copy, 2020 WL 6504639

Footnotes

1
See Doc. 1.

2
See Doc. 20; 22.

3
See Doc. 21; 24.

4
See Doc. 25.

5
Fed. R. Civ. P. 55(b)(2).

6
Kibbie v. BP/Citibank, 2010 WL 2573845 at *2 (M.D. Pa. June 23, 2010).

7
10A Charles Alan Wright and Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE, § 2685
(Apr. 2020 Update).

8
Pesotski v. Summa & lezzi, Inc., 2017 WL 3310951 at *2 (M.D. Pa. Aug. 3, 2017).

9
Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000).

10
Deutsche Bank Nat. Trust Co. v. Strunz, 2013 WL 122644 at *1 (M.D. Pa. Jan. 9, 2013).

11
Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 177 n. 9 (3d Cir.1990).

12
Broadcast Music, Inc. v. Kujo Long, LLC, 2014 WL 4059711 at *2 (M.D. Pa. Aug. 14, 2014).

13
Pesotski, at *3.

14
See Doc. 19; 23.

15
See Laborers Local Union 158 v. Shaffer, 2011 WL 1397107 (M.D. Pa. Apr. 13, 2011).

16
Martin v. Nat’l Check Recovery Servs., LLC, 2016 WL 3670849 at *1 (M.D. Pa. July 11, 2016).

17
Broadcast Music, Inc. v. Spring Mount Area Bavarian Resort, Ltd., 555 F.Supp.2d 537, 541
(E.D. Pa. 2008).

18
Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990).

19
Doc. 1 ¶ 10.

20
Id. ¶¶ 7, 8, 11.

21
Id. ¶¶ 12-13.

22
Id. ¶ 14.

23
Id. ¶¶ 15-16.

24
Id. ¶¶ 17-18.

25
Id. ¶¶ 19-30.

26
Brewington for Brewington v. City of Philadelphia, 199 A.3d 348 (Pa. 2018).

27
Ali v. Lyons, 2006 WL 724570 at *1 (E.D. Pa. Mar. 22, 2006) (citing Klein v. Hollings, 992
F.2d 1285, 1291 n.2 (3d Cir. 1993)).

28
Doc. 1 ¶ 33.

29
Brim v. Wertz, 35 Pa. D. & C. 4th 277, 285 (Commw. Ct. 1996) (citing Mazzagatti v.
Everingham by Everingham, 512 Pa. 266, 279 (1986)).

30
Plaintiffs also allege a series of other statutory violations upon which they seemingly premise
a negligence per se theory. Though this Court has previously found that several of the statutes referenced by Plaintiffs cannot support a negligence per se theory, Plaintiffs have separately alleged a duty of care through both the common law and other statutes and regulations, so this shortcoming is not fatal. See Wendt v. Brussard, 2020 WL 2850599 (M.D. Pa. June 2, 2020).

31
See, e.g., Drew v. Work, 95 A.3d 324, 338 (Pa. Super. 2014) (finding that a trial court had erred
in not charging the jury on negligence per se, because “if the jury were to credit this testimony, [the driver’s] action would have violated section 3309(1), and therefore, been per se negligence.”); see also Thompson v. Austin, 272 Fed. Appx. 188, 191-92 (3d Cir. 2008) (same).

32
Doc. 1 ¶ 16.

33
Id. ¶¶ 16; 19-30.

34
Id. ¶ 7.

35
Doe v. Philadelphia Cmty. Health Alternatives AIDS Task Force, 745 A.2d 25, 27 (Pa. Super.
2000).

36
Doc. 1 ¶¶ 41-47; 77-83.

37
Sinn v. Burd, 404 A.2d 672 (Pa. 1979).

38
Deitrick v. Costa, 2015 WL 1605700 (M.D. Pa. Apr. 9, 2015); see also Brezenski v. World
Truck Transfer, Inc., 755 A.2d 36, 45 (Pa. Super. 2000) (“[A]bsent a finding of negligence, the negligent infliction of emotional distress claim cannot survive.”).

39
Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 777-78 (3d Cir. 2018) (quoting Darr Constr.
Co. v. Workmen’s Comp. Appeal Bd., 552 Pa. 400 (1998)) (internal quotation marks omitted).

40
Id. at 778 (3d Cir. 2018).

41
See Federal Rule of Civil Procedure 15.

2020 WL 6381453

United States District Court, M.D. Pennsylvania.
PETS GLOBAL, INC., Plaintiff,
v.
M2 LOGISTICS, INC. and Habil Transportation LLC, Defendants.
Civil No. 1:18-CV-01256
|
Signed 10/30/2020
Attorneys and Law Firms
Carrie J. McConnell, Kevin D. Rauch, Summers, McDonnell, Hudock & Guthrie, PC, Harrisburg, PA, Paul J. Kozacky, Pro Hac Vice, Kozacky Weitzel McGrath, PC, Chicago, IL, for Plaintiff.
Joshua M. Koch, Pro Hac Vice, Green Bay, WI, John E. Tyrrell, Ricci Tyrrell Johnson & Grey, Philadelphia, PA, for Defendant M2 Logistics, Inc.
George A. Reihner, Wright & Reihner, PC, Scranton, PA, for Defendant Habil Transportation LLC.

MEMORANDUM
JENNIFER P. WILSON, United States District Court Judge
*1 Before the court is Plaintiff Pets Global, Inc.’s (“Pets Global”) motion for summary judgment against Defendant Habil Transportation LLC (“Habil”). (Doc. 49.) The court holds that Pets Global has proven a prima facia case under the Carmack Amendment, and Habil has not provided any evidence to rebut its liability. Thus, for the reasons that follow, the court will grant Pets Global’s motion for summary judgment.

Factual Background and Procedural History1
In December 2017, Pets Global, the shipper and owner of 40,700 pounds of pet food product, shipped said pet food under bill of lading number 5115895 (hereinafter described as “the cargo”). (Doc. 50, ¶ 1.) M2 Logistics, Inc. (“M2 Logistics”), identified as the carrier on the bill of lading, agreed to deliver the cargo from Pets Global in Brainerd, Minnesota, to Pet Food Experts, Inc. (“Pet Food Experts”) in Denver, Pennsylvania. (Id. ¶ 3; Doc. 54-2, p. 2.)2 M2 Logistics then contracted with Habil to physically pick up, carry, and deliver the cargo.3 (Doc. 50, ¶ 3; Doc. 53, ¶ 3; Doc. 54-2, p. 2; Doc. 54-3, p. 2.) The bill of lading indicates that at the time of pickup, the described property was “received in good order except as noted,” and no notations were made to indicate that any property was not in good order. (Doc. 13-1.)

While transporting the cargo, Habil’s tractor trailer was involved in an accident near Harrisburg, Pennsylvania, on December 22, 2017. (Doc. 50, ¶ 6.) The police crash report prepared by the Pennsylvania State Police indicates that the accident occurred at 2:49 a.m. on December 22, 2017, on State Route 283 East. (Doc. 55-1, p. 1, 5.) There were no adverse weather conditions, the road surface was dry, and only one vehicle was involved in the accident. (Id.) The report provides that the tractor trailer was “driving too fast for conditions,” which caused the tractor trailer to “overturn/roll over.” (Id. at 1–2.) The driver of the tractor trailer was cited for violating Title 75, section 3361 of the Pennsylvania Code, titled “Driving vehicle at safe speed.” (Id. at 2, 7–8, 10.) The traffic citation accompanying the police crash report lists the nature of the offense as “driv[ing] vehicle at a speed greater than was reasonable/prudent under conditions.” (Id. at 10.) Due to the accident, the cargo was never delivered to Pet Food Experts. (Doc. 50, ¶ 5; Doc. 53, ¶ 5.)

Pets Global was shipping the cargo based on a contract to sell the cargo to Pet Food Experts for $56,106.02. (Doc. 50, ¶ 11.) Because the cargo was not delivered, Pet Food Experts never paid Pets Global for the cargo. (Id. ¶ 12.)

*2 Habil admits that Pets Global was not involved in the accident. (Doc. 50, ¶ 14; Doc. 53; ¶ 14.) However, Habil asserts that it promptly notified its insurance carrier and M2 Logistics of the accident, as well as the location and condition of the cargo.4 (Doc. 53, ¶ 13.) Habil states that the cargo was towed to a warehouse following the accident. (Doc. 35, ¶ 14.) It is Habil’s contention that the cargo could have been salvaged and delivered if assessed and approved by M2 Logistics. (Doc. 53, ¶¶ 13–14.)

This action was initiated via complaint on June 21, 2018, and is proceeding on the basis of an amended complaint filed on August 2, 2018. (Docs. 1, 13.) The amended complaint sets forth one count under the Carmack Amendment, 49 U.S.C. § 14706, against M2 Logistics and Habil. (Doc. 13.) M2 Logistics answered the amended complaint and pled a crossclaim against Habil on August 10, 2018. (Doc. 17.) On October 1, 2018, Pets Global requested that the Clerk of Court enter default against Habil, and default was entered on October 11, 2018. (Doc. 30.) On October 31, 2018, Habil filed a motion to set aside the entry of default. (Doc. 35.) Once ripe, the court granted Habil’s motion and set aside the entry of default. (Docs. 43, 44.) On April 12, 2019, Habil answered the amended complaint as well as M2 Logistics’ crossclaim. (Docs. 45, 46.)

On September 10, 2019, Pets Global moved for leave to file a motion for summary judgment, which the court granted on October 2, 2019. (Docs. 47, 48.) The instant motion for summary judgment was filed by Pets Global on October 2, 2019, along with a statement of facts and brief in support. (Docs. 49, 50, 51.) Habil opposed the motion on October 23, 2019, and Pets Global filed a timely reply brief on November 6, 2019. (Docs. 52, 53, 54, 55.) Thereafter, this case was reassigned to the undersigned on November 26, 2019. On September 28, 2020, after discovering that an exhibit was missing from Pets Global’s motion for summary judgment, the court ordered the parties to confer and, if in agreement, that Pets Global file the missing exhibit. (Doc. 56.) The parties agreed and the exhibit was filed on September 30, 2020. (Doc. 57.)

Jurisdiction
This court has original jurisdiction over this case under 28 U.S.C. § 1337(a), which provides the district courts of the United States with jurisdiction over actions arising under the Carmack Amendment, 49 U.S.C. § 14706. Furthermore, venue is proper under 28 U.S.C. § 1391 and 49 U.S.C. § 14706(d) because a substantial part of the events giving rise to the asserted claims occurred within this District.

Standard of Review
Federal Rule of Civil Procedure 56 sets forth the standard and procedures for the grant of summary judgment. Rule 56(a) provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to summary judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986). A factual dispute is “material” if it might affect the outcome of the suit under the applicable substantive law, and is “genuine” only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When evaluating a motion for summary judgment, a court “must view the facts in the light most favorable to the non-moving party” and draw all reasonable inferences in favor of the same. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

*3 The moving party bears the initial burden of demonstrating the absence of a disputed issue of material fact. See Celotex, 477 U.S. at 324. “Once the moving party points to evidence demonstrating no issue of material fact exists, the non-moving party has the duty to set forth specific facts showing that a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor.” Azur v. Chase Bank, USA, Nat’l Ass’n, 601 F.3d 212, 216 (3d Cir. 2010). The non-moving party may not simply sit back and rest on the allegations in its complaint; instead, it must “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (internal quotations omitted); see also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). Summary judgment should be granted where a party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden at trial.” Celotex, 477 U.S. at 322–23. “Such affirmative evidence – regardless of whether it is direct or circumstantial – must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.” Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).

Discussion
The Carmack Amendment, now codified at 49 U.S.C. § 14706, was established to create a uniform federal standard governing a railroad carrier’s liability for “ ‘loss, damage, or injury’ to goods while in interstate transit.” AMG Res. Corp. v. Wooster Motor Ways, Inc., 796 F. App’x 96, 98 (3d Cir. 2020) (citation omitted). In expanding and modernizing the Carmack Amendment over the past century to apply to motor carriers, a shipper may now bring suit in federal court against any carrier that transports its cargo, with or without a bill of lading. 49 U.S.C. § 14706(a), (d). To establish a prima facie case under the Carmack Amendment, a shipper must establish: “(i) that the initial carrier received the cargo in good condition; (ii) that the cargo was lost or damaged; and (iii) the amount of actual loss or damages.” AMG Res. Corp., 796 F. App’x at 98 (citing Mo. Pac. R.R. v. Elmore & Stahl, 377 U.S. 134, 138 (1964)).

Here, while Habil objects to the assertion that the cargo was in good condition when it was received for transport, Habil points to no evidence to establish the contrary. Further, the bill of lading does not note any damage to the cargo as required by the bill of lading language. A bill of lading reciting a shipment’s contents and stating that the goods were in good condition when received by the carrier can be sufficient to satisfy the first element of the Carmack Amendment’s prima facie case. Beta Spawn, Inc. v. FFE Transp. Servs., Inc., 250 F.3d 218, 225 (3d Cir. 2001). Because Habil has failed to present any evidence to establish that any material dispute exists as to the condition of the goods when received for transport, other than to state its disagreement in conclusory fashion, the court finds that the first prong of Pets Global’s prima facie case is established.

As to the second prong of the prima facie case, Habil argues that it “did everything within its power to complete the shipment and mitigate the loss to [Pets Global].” (Doc. 52, p. 7.) However, Habil ignores the legal reality that for the purpose of a establishing a prima facie case, “non-delivery of a shipment establishes a prima facie case of carrier liability.” Paper Magic Grp., Inc. v. J.B. Hunt Transp., Inc., No. 00-5590, 2001 WL 1003052, at *2 (E.D. Pa. Aug. 29, 2001) (quoting Hopper Furs, Inc. v. Emery Air Freight Corp., 749 F.2d 1261, 1263 (8th Cir. 1984)), aff’d, 318 F.3d 458 (3d Cir. 2003). The parties do not dispute that the cargo was not delivered to Pet Food Experts and, for the purpose of a prima facie case, it is irrelevant that Habil attempted to complete the shipment and mitigate the loss. Thus, Pets Global has met the second prong of the prima facie case.

*4 Lastly, for the third prong of the prima facie case, Pets Global submits that Pet Food Experts never paid the $56,106.02 invoice for the cargo as it was never delivered. Habil admits this fact, but argues that there is “a disputed issue of material fact as to the actual loss suffered by [Pets Global] and [Pets Global’s] failure to mitigate its purported loss.” (Doc. 53, ¶ 12; Doc. 52, p. 9.) The law is clear that the “measure of actual damages is the contract price,” i.e. the $56,106.02. Paper Magic Grp., Inc., 2001 WL 1003052 at *4. Habil relies on the argument that “a shipper/consigner is ordinarily under a duty to mitigate its loss.” Paper Magic Grp., Inc., 318 F.3d at 462–63 (citations omitted). (See also Doc. 52, p. 8–9.) However, Habil misses the mark because the duty to mitigate damages, to the extent it may apply, has no bearing on whether Pets Global has proven a prima facie case. Rather, once Pets Global establishes a prima facie case, the burden shifts to Habil “to show that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability.” Nat’l Union Fire Ins. Co. of Pittsburgh v. Schneider Nat’l Carriers, Inc., No. 15-1401, 2018 WL 6573471, at *4 (D.N.J. Sept. 25, 2018) (quoting Mo. Pac. R. Co., 377 U.S. at 138). Accordingly, Pets Global has proven the third prong of a prima facie case.

Because Pets Global has proven a prima facie case, Habil is liable under the Carmack Amendment unless it can show that it was not negligent or that “the damage was caused by (a) the act of God; (b) the public enemy; (c) the act of the shipper himself; (d) public authority; (e) or the inherent vice or nature of the goods.” Nat’l Union Fire Ins. Co. of Pittsburgh, 2018 WL 6573471 at *4 (quoting Mo. Pac. R. Co., 377 U.S. at 138). Habil does not provide the court with any evidence to rebut Pets Global’s claim. Rather, Habil argues that the accident was not due to its driver’s negligence, it did everything it could to attempt to deliver the cargo, and Pets Global should have mitigated its loss. (Doc. 52, pp. 7–10.)

Contrary to Habil’s assertion, the police crash report provides that there were no adverse weather conditions, only Habil’s tractor trailer was involved in the accident, and the accident was caused by Habil’s driver driving too fast for the conditions. (Doc. 55-1, p. 1–2, 5.) Additionally, Habil does not provide any evidence regarding the shipper’s, i.e. Pets Global, duty to mitigate its damages. As stated, it is Habil’s burden to rebut Pets Global’s claim, but other than statements of disagreement, Habil has not provided evidence showing it was not negligent for the accident, nor any information regarding Pets Global’s lack of mitigation.

Habil also argues that there is a question of fact regarding whether Habil is solely liable to Pets Global. (Doc. 52, p. 7.) Specifically, Habil asserts that M2 Logistics is also responsible for the damages to Pets Global because M2 Logistics issued the bill of lading and contracted with Habil to transport the cargo. (Id.) According to Habil, following the accident, M2 Logistics took no action to facilitate the delivery of the cargo. (Id. at 8.) Ultimately, Habil argues that M2 Logistics should also be held liable for Pets Global’s claim, thus, there is a disputed issue of material fact with respect to Habil’s liability. (Id.) Again, Habil has the burden of proving any set-off as an affirmative defense. See Alexious v. Mashos, No. 08-5491, 2009 WL 5092810, at *4 (E.D. Pa. Dec. 17, 2009). The conjecture and assumptions put forth by Habil are again insufficient to meet this burden. Accordingly, because Habil has not provided any evidence of a defense as required by the burden shifting framework of the Carmack Amendment, judgment will be granted in Pets Global’s favor.

As to amount of damages, Pets Global asks the court to award the actual damages suffered of $56,106.02, court costs of an undisclosed amount, and prejudgment interest of six percent per annum from January 13, 2018, the date Pet Food Experts was required to pay Pets Global, through the date of judgment, which is within the court’s discretion. See Paper Magic Grp., Inc., 2001 WL 1003052 at *5 (citations omitted) (awarding prejudgment interest from the date plaintiff would have had use of the money through the date of judgment). The Third Circuit has approved awarding prejudgment interest at this rate. See Paper Magic Grp., Inc., 318 F.3d at 465 (affirming the prejudgment interest of six percent annum from the date the funds would have been available to plaintiff through the date of judgment). It should be noted that Habil does not object to or discuss the prejudgment interest request of Pets Global. Thus, the court will award Pets Global prejudgment interest from January 13, 2018, through October 30, 2020, the date judgment is entered against Habil. Prejudgment interest at six percent per annum on $56,106.02 from January 13, 2018 through October 30, 2020 totals $9,425.81. Thus, the total amount of damages that will be awarded to Pets Global is $65,531.83. Regarding court costs, Pets Global may file a Bill of Costs in accordance with the local rules.

Conclusion
*5 For the reasons stated herein, the court will grant Pets Global’s motion for summary judgment. An appropriate order will issue.

All Citations
Slip Copy, 2020 WL 6381453

Footnotes

1
In considering Pets Global’s motion for summary judgment, the court relied on the uncontested facts, or where the fact were disputed, viewed the facts and deduced all reasonable inferences therefrom in the light most favorable to Habil as the nonmoving party in accordance with the relevant standard for deciding a motion for summary judgment. See Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 362 (3d Cir. 2008).

2
For ease of reference, the court utilizes the page numbers from the CM/ECF header.

3
Habil is a motor carrier based in the United States. (Doc. 50, ¶ 2.)

4
The document relied upon by Habil is a “load confirmation” form between M2 Logistics and Habil. (Doc. 54-3, pp. 2–3.) However, this form does not support Habil’s contention that it notified its insurance carrier or M2 Logistics of the accident, nor does it contain any information about the location or condition of the cargo.